News Comment/COMENTARI AL DIA

Open letter to Nicola from a Catalan on Europe and referendums/CARTA OBERTA A NICOLA D’UN CATALÀ SOBRE EUROPA I REFERÈNDUMS

Open letter to Nicola from a Catalan on Europe and referendums

by Josep C. Vergés

A senior American official writes from Washington: ‘Hello Josep and a question: what are the chances that Spain would agree to any outcome that would leave Scotland or rather Ecosse in the EU, either by remaining (as some in the legal department are considering without England and Wales, leaving a United Kingdom of Scotland and Northern Ireland) or by voting for independence and reapplying? The answer to that question, and any other thoughts you might have about Brexit would be of great interest to me and my wife who, as you may recall, worked at the Commission as a national expert (from a non-EU nation) around 25 years ago.’

For starters my realisation that England and Spain have much in common in their parallel existential crises. Spain has Catalonia with a stable pro-independence government while Madrid has not been able to form a government in eight months and hardly will until there is an answer to the Catalan question. Just like London has been left with no stable government until the Brexit question is answered, while Scotland does have a strong pro-independence government with a clear statement from the people in favour of Europe. I would add that the two existential crises have been self-inflicted by party politics – the Conservatives in England forcing an unnecessary referendum and also the conservatives in Spain destroying just as unnecessarily a referendum approved by the Catalan and Spanish Parliaments and by the sovereign people on the Statute of Catalonia which has given birth to the independence movement.

And now to the main point of the American friend’s question: Catalonia wants to break from Spain without leaving Europe and Madrid wants to block any European backing to this ambition. Will Madrid get its way? The past seems to suggest that it won’t be able to stop some kind of agreement with Scotland. Together with Russia and Serbia, Spain is the only European country not recognising Kosovo, precisely because of the independence referendum from Serbia. Despite Madrid’s opposition. Kosovo is independent and a European protectorate.

Can Madrid veto Scotland? It wil have a hard time vetoing Catalonia and more so Scotland. To veto Catalonia first Madrid must recognise the independence of Catalonia, which would allow other countries to recognise Catalonia, not only European but also the United States. A veto by Madrid on an independent Scotland would be even more difficult to sustain.

The important variable here is European citizenship, which is usually ignored. Madrid would first have to take away Spanish citizenship to all Catalans. Otherwise we would be European through Spanish citizenship. Europe is no longer just the States. Maastricht created a European citizenship which has been increasingly reinforced. A shamed Europeafter Hitler‘s mass expulsion of Jews has made impossible the mass expulsion of citizens who can only leave of their own free will. Neither Madrid nor London nor Brussels can mass expel Catalans or Scots or English for that matter.

Brussels specifically cannot mass expel the European citizens of Scotland if the Edinburgh Parliament refuses to follow the Brexit of the London Parliament. It could demand that the Scots express (again) their wish to remain in Europe. This would become a new independence referendum were London to insist, but not necessarily so. Scotland could remain in the United Kingdom like Hong Kong belongs to China with its own economic system, in the Scottish case the EU.

Europe is not monolithic. The Danish case is little known. Only Denmark proper is part of the EU, while the Faroe Islands and Greenland are not, both represented in the Copenhagen Parliament. We could visualise Scotland (and Northern Ireland) in the EU and England and Wales in splendid isolation, despite no independence of the former or reunification of the latter.

One proposal is that Scotland is put in a holding pen staying on as a EU member but without entering the council chamber until the likely dispute with the Brexiteers in London. The same goes for Catalonia in the face of the Spanish nationalists in Madrid. From a European perspective the Danish corral a l’invers would be the ideal solution, not forcing drastic measures, putting London and Madrid with a fait accompli, respecting the democratic vote of the European citizens of Scotland and Catalonia and avoiding the banned Hitler measures by Europe of mass expulsion of its citizens.

Living in Switzerland, I can see Europe following a similar path. In theory a canton can leave Switzerland but the Swiss have found ways to solve territorial conflicts. Canton separations are quite common. There are seven canton break aways, the latest the Jura from Berne. Europe can just as easily find formulas for separations without expelling its citizens like Switzerland has never done.

Remaining with Switzerland, some points on referendums. These exist only since 125 years ago. They were established to control the Federal Parliament and early on, in 1918, the proportional vote was established. The proportional vote has provided the stability England lacks (unlike Scotland with also a proportional vote). Government in Switzerland is not possible without coalitions with real majorities, not Cameron’s 36% of the vote. Switzerland has had anti-European referendums, impelled by the Swiss conservatives, who have lost as many as they have won. This 2016 they have lost three. The best known they have won is on immigration but the one with the greatest impact was against joining the EU. But Switzerland has joined Europe step by step.The people voted to pay the contribution to belong to the single market and to incorpate all European law. They voted to join Schengen, which England has not. They voted to submit to the European Court of Justice and the Human Rights Act. The 2014 vote against freedom of movement has yet to become law and likely never will. The Constitution has a proviso that no law can be incorporated that gravely damages the country, which would be the case with the expulsion from the single market. A warning to Brexiteers: two years are nothing and Switzerland has only one little matter to settle, not 40 years of common laws. The little matter, immigrants, has in fact been Brexit’s central battle. But Switzerland is not forced to leave after two years, which have already passed.

The referendums have safeguards. The main one is that the majority of cantons have also to be in favour. In the English case it would be a draw and Brexitwould not go aheadbecause Scotland and Northern Ireland counterweigh England and Wales. In addition referendums can be repeated. Giving the vote to women required two referendums. The Federal Court has already confirmed that European law trumps Swiss law when these are in contradiction. The single market incorporated in the Swiss Constitution cannot be threatened by a referendum limiting freedom of movement. Even if the Federal Parliament were to vote for a law limiting the freedom of movement, the Federal Court would void it. The precedent already in place would void it by threatening the single market.This is the reason why the Swiss have been negotiating for two years with the EU to find a formula that would allow to incorporate the referendum against freedom of movement. Many proposals, all shot down and the door firmly shut. Brexit has sealed the door with double lock and bar, because the EU wants to make an example of Switzerland as a a warning for Brexiteer seafarers.

Another European lesson is that the London Parliament can ignore the referendum if it threatens the British future lesson, like Switzerland will do. In fact Europe can ignore Brexit like it has done with the Dutch referendum against Ukraine. Democracy is flexible in Switzerland and Europe and surely in London as well. Europe is a work in progress in the works as Zurich neighbour James Joyce, where I live. Winston Churchill came to give a conference after winning the second World War with a call ofr a United States of Europe. He would be surprised at the progress made by Europe in 50 years. And to answer the question, Scots and Catalans are and will remain European. More difficult to answer is whether we shall be independent. That requires a referendum…